Morris v Davies & Ors [2011] EWHC 1773 (Ch) (12 July 2011)

Neutral Citation Number: [2011] EWHC 1773 (Ch) Case No: HC10C02504 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 12 July 2011 B e f o r e : MR CHARLES HOLLANDER QC (SITTING AS A DEPUTY JUDGE) ____________________ Between: ADRIAN NICHOLAS MORRIS And ADRIAN MICHAEL DAVIES MARIA JOZICA DAVIES ADRIENNE MARIA CATHERINE MAMBER EDWIN LAURENCE DAVIES CLIVE VERNON DAVIES Claimant ____________________ Edward Rowntree (instructed by Wright Hassall ) for the Claimant Mark Simeon Jones (instructed by Osmond & Osmond ) for the First to Third Defendants Hearing dates: 29 June-1 July 2011 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR CHARLES HOLLANDER QC (SITTING AS A DEPUTY JUDGE): The present litigation relates to the administration of the estate of Owen Robert Treharne Davies ("Owen"), who died unexpectedly of a heart attack aged 45 in Paris on 26 November 2008. In these proceedings, commenced on 24 February 2010, the Claimant seeks to admit the will to probate. The parties Owen was born in England on 1 November 1963 and was a British citizen. He made his last will ("the will") on 30 March 1996 accompanied by a letter of wishes and a letter containing an expression of the deceased's wishes concerning the administration of his affairs following his death. The will appointed a friend, Mr Adrian Morris, who is the Claimant, together with Mr Morris' then girlfriend and now wife, Ms Sheila Hackelton, as executors. Ms Hackelton has taken no part in these proceedings. The First Defendant, Mr Adrian Davies ("Adrian"), is the elder brother of the deceased. Mrs Maria Jozica Davies, the Second Defendant, is his mother. The Third Defendant, Ms Adrienne Mamber, is the sister of the deceased. Mr Edwin Davies, the Fourth Defendant, is also a brother of the deceased but has taken no active part in the proceedings. Mr Clive Davies ("Clive"), the Fifth Defendant, Owen's uncle, was joined as a defendant under CPR Part 19, initially instructed solicitors, but subsequently ceased to have legal representation. He says through his former solicitors that his position is to support the Claimant but he has taken no active part in the proceedings. The other main participants in this dispute are Mlle Natalie de Vleeschauwer ("Natalie") a Belgian national who was at the time of the deceased's death engaged to be married to him, and Mr Matthew Judson, who was named in the letter accompanying the will as an alternate to the Claimant in the event of him predeceasing Owen. It is convenient in this judgment to refer to certain of the family members concerned and Owen's fiancée simply by their first names. I intend no discourtesy in doing so. Issues in the action The First to Third Defendants (I shall refer to them as the Family Defendants), contend that the will was a sham. They say that the deceased was domiciled in Belgium and that succession to moveables is governed by Belgian law, that the will is void under Belgian law, that the will is void under English law as regards the deceased's immoveable property and that the will was obtained by the undue influence of Clive. They ask by way of counterclaim that the Claimant be passed over as executor and seek the grant of letters of administration to the First and Second Defendants. The preliminary issue On 9 September 2010 Master Bowles ordered that the issue of the domicile of the deceased at the date of death be tried as a preliminary issue. It is this issue which I am required to decide. Events subsequent to Owen's death It is convenient first to deal with what occurred after Owen's death, because although not relevant to a determination of Owen's domicile at the time of death, those events have coloured these proceedings. Owen died unexpectedly of a heart attack in Paris on 26 November 2008 when attending a seminar. As appears below, at the time of his death Owen was working in Guyancourt, near Paris. When Natalie learned of Owen's death, she contacted the Claimant, who contacted Clive. On the same day Natalie was interviewed by the Paris police as a result of the death and stated that she would notify his family of the death. The French police provided to Natalie an inventory of Owen's personal effects. On 2 December 2008 Clive, describing himself as next-of-kin of Owen, granted Natalie authority to release Owen's body after the autopsy. The Family Defendants were not informed of Owen's death. On 16 December 2008 the Claimant signed a Request for Cremation form which stated that the deceased's near relatives had been informed of the death. Owen was cremated in England on 23 December 2008. A large number of people attended the funeral, including Clive. The claimant estimated 100 people attended, although other witnesses suggested the figure may have been less. None of those persons either before or after the funeral, either accidentally or deliberately, made known to the Family Defendants the fact of Owen's death. On 24 December 2008, the day after the cremation, Adrian sent a text to what he believed to be Owen's mobile phone, but which Natalie says was in fact her mobile phone, asking whether he was coming over for Christmas: "RU Coming to Bromley on Boxing Day Rgds Adrian". Natalie texted a response "Sorry. Won't be able to make it this time. Shall explain later." Adrian responded "Okay, no problem. Mum was anxious to know one way or the other. Adrian." Adrian assumed the response to his text came from Owen. There are issues as to the precise effect and circumstances of what was stated or signed by Natalie and the Claimant but these matters are not material to the present proceedings. The Family Defendants did not learn of Owen's death until 23 March 2009, four months after the death, after a call from the coroner. The circumstances in which the death and funeral of Owen was witheld from them has caused the Family Defendants great distress. It has also led to great hostility between them and those who they regard as responsible. Not surprisingly, this came into the preliminary issue as a matter said to be relevant to credibility of witnesses, in particular the credibility of Natalie and the Claimant. It was contended by counsel for the Family Defendants that the fact persons are prepared (as he put it) " to deceive, to commit what may be criminal offences and to defy common norms of human behaviour in furtherance of undisclosed aims which may or may not relate to their subjective perceptions of what the deceased might have wanted is significant in determining the credibility of those giving evidence" Before the evidence commenced, I indicated without making a formal ruling that I was minded to allow cross-examination as to credit in these circumstances but that there would relatively soon come a stage where such cross-examination ceased to assist the court. Credibility and assessment of witnesses All those who gave oral evidence on behalf of the Claimant were very clear that Owen did not want his family (except Clive) in any way involved in his affairs after his death, or his funeral, and strongly believed as a result of their conversations with Owen during his lifetime that the unusual events which occurred after his death were entirely in accordance not only with his wishes but on his insistence, and in at least the case of Natalie, in accordance with promises she had made to him during his lifetime. In particular, they believed that the religious views of the family (who were Catholics in the strict tridentine tradition) were anathema to Owen. At least in the case of Natalie and the Claimant, their involvement in these events was not without inconsiderable personal risk: I was asked to instruct the Claimant about privilege against self-incrimination in the light of intended questioning by the English police in relation to the cremation form, and it was suggested to Natalie that she had made false statements to the French police. As for financial interest, the Claimant had any view no financial interest in the estate. Natalie had no direct financial interest but recognised that it was possible that Clive would if he succeeded to the estate pass some of it to her voluntarily, although she made very clear there was no agreement or arrangement to that effect. Clive did not give evidence. However, one thing that was absolutely obvious in this case was that the motivation of those who witheld the death from the family was nothing whatsoever to do with money. Ironically, it was the Family Defendants who had a direct financial interest in a favourable resolution of these proceedings. Although much of the evidence relevant to Owen's domicile was uncontroversial, some of the evidence as to his intentions and declarations relevant to intention and thus domicile were in issue. The important evidence was from those who knew him well, and thus those who might be regarded as having a better understanding of his intentions and aspirations: first, Natalie and secondly, the Claimant. It seemed to me that to speak of their credibility being affected by what was argued to be disreputable or possibly even criminal behaviour was not the right approach in this case. I think the position is better put as follows. Those who had such strong feelings towards Owen that they would go to the lengths they did to give effect to what they believed to be his wishes, might be regarded as partisan witnesses in a dispute with those they would consider to be attempting to thwart those wishes. So my starting point in considering the evidence of Natalie and the Claimant was that I should bear in mind that they might have a strong motivation to put their evidence in a less than objective manner. Natalie's witness statement presents a moving account of the man she knew and loved. It is unusual for a witness statement in that it is poignant yet always precise, detailed and relevant. She is obviously a woman of considerable intelligence and determination. Her oral evidence was careful, precise and not overstated. She was willing to concede where necessary: for example she was asked whether if Owen had hypothetically obtained a job in the US she would have moved with him; her response required precision on the date to which the question related, because the earlier the date, the less clear the position would have been. When asked about a draft cv of Owen's found in his papers on which he described himself as "British but resident in Belgium commuting to France weekly" her response was credible and insightful: she believed this cv was prepared when Owen was seeking a job with Toyota Belgium, that this reflected an application for a job in Belgium sent from a French address, and he did not include this sentence when he applied for a job with Porsche in Germany. Having approached Natalie's evidence with potential caution as explained above, I found that she was a witness whose evidence I could rely on and in general I accept her evidence as truthful and accurate.. The Claimant plainly knew Owen well and his evidence also demonstrated great affection for his late friend. He saw Owen four or five times a year. His perspective and the matters he and Owen discussed were obviously different from those discussed between Owen and Natalie. The Claimant, being resident in England, was familiar with what might be described as Owen's English interests, such as the property Owen owned in Stratford on Avon. Approaching the Claimant's evidence with the starting point of caution as I have indicated, I found him also a reliable and truthful witness whose evidence I could rely on. Also relevant is that the picture presented by the two short witnesses called by the Claimant, Mr Matthew Judson and Mr Tony Wood, who were also friends of Owen, was consistent with that of Natalie and the Claimant, and thus the evidence of each supports that of the other. Overall, by the end of the Claimant's case, I felt I had been given a very full portrait of a man who obviously inspired great affection and loyalty amongst those who loved him and were fond of him. Two witnesses gave evidence for the Family Defendants. Mrs Adrienne Mamber, Owen's sister, lives in California with her family and gave evidence by video-link. She and Owen used to speak roughly monthly by phone and they emailed each other. She was an entirely truthful witness. But she had not seen Owen for four years prior to his death because she was in California with a young family, was not aware that he intended to marry Natalie, and had not discussed with him matters such as whether he was happy at work. Inevitably, in the years prior to his death, her knowledge of him was limited. The other witness to give oral evidence for the Family Defendants was Adrian. Adrian is a barrister with a first-class degree from Cambridge. In his written evidence, Adrian sometimes sought to draw conclusions from documents which were more argument than evidence and often put in contentious terms. The intensity of his feelings towards those whom he regarded as having so grievously wronged his family after Owen's death were apparent from his oral evidence, and he made clear his views in terms that were trenchant and uncompromising. However, he was able to keep those views separate from his oral evidence about Owen relevant to domicile and his statements about his knowledge of Owen in his oral evidence were measured and objective. But it seemed to me important to consider how well Adrian actually knew Owen. Adrian said that he and Owen were friends as children, and in their youth, but had subsequently fallen out from about 1994 to 2002 over a family dispute arising from their grandfather's death and the administration of his estate, to the extent that Owen neither spoke to nor contacted anyone in the family other than Clive and his sister in those years. Owen came with Natalie to his mother's Bromley house in 2002 to house-sit the dogs when his mother was on holiday and since then the relationship between Owen and his family had recovered. Adrian would see Owen twice a year, always in the Bromley property, on Boxing Day and often over the August bank holiday. They would email, and spoke on the phone principally when Owen would ring him in chambers asking to be sent a report of some patent case. He had not been to see him in Belgium. They were not close, but had a decent relationship since 2002. What did seem to me important in considering Adrian's evidence was that in recent years he did not really know Owen very well compared to those such as Natalie and the Claimant. In taking into account the evidence of the Family Defendants, I thus bear in mind that they knew Owen far less well in the last years of his life. In fact, there was little actual conflict of evidence between the witnesses. More it was a case that a number of the assertions made by Natalie and the Claimant in particular were probed and challenged. In general, the most important evidence was that of Natalie (who knew Owen best) and then the Claimant. The Belgian proceedings On 29 March 2011, the Defendants issued court proceedings in Belgium against Clive alone. On 20 May 2011 Sarah Asplin QC, sitting as a deputy judge, granted an interim injunction restraining the prosecution of the Belgian action, which has now been stayed until October 2011. Domicile: relevance The Defence and Counterclaim pleads that: i) The deceased died domiciled in Belgium both in the Belgian sense of habitual residence and in the English sense of habitual residence with the intention of remaining in Belgium permanently or indefinitely ii) Accordingly, succession to the deceased's moveables is governed by Belgian law iii) The will is null and void as a matter of Belgian law The First and Third Defendants counterclaim for a declaration that the deceased died domiciled in Belgium, or in the alternative in the event that the court concludes that the deceased died domiciled in Belgium under the Belgian law definition of the term. There are other defences raised irrelevant to the present preliminary issue. Domicile: the law The following principles of law, which are derived from Dicey, Morris and Collins on the Conflict of Laws (14 th ed 2006) are set out in Barlow Clowes International Ltd v Henwood (2008) EWCA Civ 577 in the judgment of Arden LJ at [8]: (i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126). (ii) No person can be without a domicile (Dicey, page 126). (iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128). (iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129). (v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133). (vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to138). (vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143). (viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to151). (ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to153). (x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153). There is no doubt that Owen had a domicile of origin in England and Wales. The issue before me is whether at some time between 2001 and his death he acquired a domicile of choice in Belgium which remained his domicile at the time of his death. In order to show that Owen acquired a domicile of choice in Belgium, the Family Defendants must thus prove the combination of: i) Residence in Belgium ii) An intention of permanent or indefinite residence. In IRC v Duchess of Portland (1982) Ch 314, 318-9 Nourse J said: "Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it." As for the intention of permanent or indefinite residence, the animus manendi, the starting point is the domicile of origin. As Lord Macnaughten said in Winans v Attorney-General (1904) AC 287 ,290: "Domicil of origin, or, as it is sometimes called, perhaps less accurately, "domicil of birth", differs from domicil of choice mainly in this-that its character is more enduring, its hold stronger, and less easily shaken off." One thing that is very striking is that whilst the exercise is fact specific, in many of the recent cases, the Court of Appeal has reversed the trial judge or criticised the judge's analysis. So the exercise is less straightforward than might be assumed and must be approached with care. In Agulian v Cyganik (2006) EWCA Civ 129 , at [46(1)] Mummery LJ said: " …the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that "Life must be lived forwards but can only be understood backwards" resonates in the biographical data of domicile disputes. " In Agulian the Court of Appeal reversed the trial judge and held that a Cypriot man who lived and worked in England from the age of 19 to his death at 63 had not acquired a domicile of choice in England. Mummery LJ said at [49]: "the deputy judge underestimated the enduring strength of Andreas's Cypriot domicile of origin. This led him to focus too much attention on how specific Andreas's plans were after 1995 to return to live permanently in Cyprus and too little attention on whether Andreas intended to live permanently or indefinitely in England. The emphasis of the judgment is, with respect, wrong. Although Andreas's intentions regarding both Cyprus and England are closely interrelated, the adhesiveness of the domicile of origin, the incidence of the burden of proof and the level of the standard of proof all require the person contending for a domicile of choice to establish a clear case that Andreas intended to live permanently or indefinitely in England. For example, in paragraph 91 quoted above the deputy judge observed that, if Andreas had continued with a string of short term girl friends, "he might eventually have decided to sell up and go and live permanently in Cyprus." In my judgment, the question is not so much whether Andreas intended eventually to return to live permanently in Cyprus, but whether it had been shown that, by the date of his death, he had formed the intention to live permanently in England. The crucial point is that Andreas had a domicile of origin in Cyprus until it was proved that he intended to reside permanently or indefinitely in England. " Holliday v Musa [2010] 2 FLR 702 is another recent case involving a Cypriot who moved to live in England from 1958 until his death in 2006. Although the Court of Appeal upheld the trial judge's decision (that he had acquired a domicile of choice in England) in this case, they did not agree with her reasoning. Waller LJ said at [23]: " In considering whether Ramadan had at some stage an intention to reside permanently and indefinitely in England, long residence in England is of course a starting point. It is furthermore important that the residence in England was the home of his family. That was true during his marriage to Souheyla and was true once he was in a relationship with Diane. It is common sense that the longer the residence and the more it is home, the more likely the inference that there is the intention to reside permanently and indefinitely. But at any stage when it might be proper to make that inference, it is important to place in the balance any continued connections with Cyprus so as to be able to be clear whether his intention has become one of settling finally in England, abandoning Cyprus. One must further be satisfied that the situation is not one in which Ramadan has simply not finally made up his mind because, as Scarman J said in Fuld , in such a situation the domicile of origin is retained." Finally, in Barlow Clowes, the issue was Mr Henwood's domicile at the date of presentation of a bankruptcy petition. Arden LJ said at [85]: "There is a strong line of case law, binding on this court, that the domicile of origin is tenacious. Thus, for example, Lord Macnaghten in Winans v Attorney-General [1904] AC 287 at 290 held that the character of domicile of origin "is more enduring, its hold stronger, and less easily shaken off" than domicile of choice. Lord Macnaghten added at 291 that a change of domicile is a serious matter because the change may involve "far reaching consequences in regard to succession and distribution and other things which depend on domicile." At 292, he held that the question was whether it had "with perfect clearness and satisfaction" been shown that the testator had "a fixed and settled purpose" or "a determination" or "a fixed and deliberate intention" to abandon his American domicile and settle in England." Arden LJ went on to consider whether this involved a higher standard of proof in showing that a domicile of origin had been lost in favour of a domicile of choice and concluded that the there was not. At [94] she said: "It seems to me that as a general proposition the acquisition of any new domicile should in general always be treated as a serious allegation because of its serious consequences. None of the authorities cited to us preclude that approach, and such an approach ensures logical consistency between two situations where the policy interest to be protected is (as demonstrated above) the same. However, what evidence is required in a particular case will depend on the application of common sense to the particular circumstances. In this case, Mr Henwood had an aversion to England because of childhood memories. If his domicile of origin arose at all in this case, it arose only because of the default rule. In those circumstances, it is not improbable that he would wish to acquire a domicile of choice elsewhere and accordingly there is no reason why the court should approach a case that he has done so with undue scepticism. There were of course other reasons why certain evidence adduced by Mr Henwood, namely that he had created, was to be approached with caution. But that was a wholly separate matter." Arden LJ also went on to consider authorities which suggested that a person could not acquire a domicile of choice unless that was that country of that person's "chief residence". At [104]: "Inevitably, any test of chief residence is circular. It cannot simply be a reference to the main home in terms of size or amenities. Nor can it be a reference to the home in which the subject spends the most time. The court has to look at the quality of the residence in order to decide in which country the subject has an intention to reside permanently. Provided that task is carried out, the chief residence in the sense that term is used in this context has in fact been identified." Owen Davies Owen was born in Newcastle in 1963. He went to school in Blackheath, left school after "A" levels in 1982 and was in the Royal Navy as a weapons officer until 1990. He took an engineering degree at the Royal Navy Engineering College during this time. From 1991 to 1994 he worked for Rover Group engineering and from 1994 until 2001 in Land Rover patent department. He lived in a property he had bought at 31 Back Lane, Lower Quinton ("Back Lane"), near Stratford-on-Avon. In 1998 he met Natalie at a training seminar in Strasbourg. She was a Belgian national who spoke fluent Flemish, English and French. She was a trainee patent attorney working in Belgium. He obtained a partial qualification as a patent attorney at Land Rover. Owen left Land Rover in February 2001 after BMW had purchased Land Rover when he took voluntary redundancy. It is apparent there were problems in the relationship between Owen and his boss. Mr Wood's evidence was that the effect of Owen falling out with one of his superiors was sufficiently serious and had such ramifications to have the effect that it would have been difficult for Owen to secure appropriate work thereafter in his relatively narrow field in the UK. In any event in the short term a non-compete clause limited his ability to find work. Owen thus looked for work abroad. At the end of March 2001 Owen had a job interview with an Anglo-Belgian patent office, Bird Goen in Winksele, Belgium. He secured the job and started on 1 May 2001. He initially stayed above Bird Goen's offices, then with a colleague and subsequently lived at Leybos 37, 3118 Rotselaar-Werchter in Belgium ("Werchter"). Owen's relationship with Natalie was becoming closer over time. Those who knew him well said he had three passions in his life. One was his cats: he was devoted to his cats. Another was scrap metal: he was passionate about motorcycles and indeed every other form of scrap metal, and all of his premises were increasingly filled with parts of vehicles. On his cv he put his interests as including restoring old vehicles and motorsport. The third, as time went on, was Natalie. During this period, whilst Owen worked in Belgium, Natalie worked in France. They would meet up at weekends in Belgium. Her Belgian registration was at her grandmother's house at brouwerijstraat 39, 9630 Zwalm-Dikkele ("Dikkele"). Her aunt's home was at borstekouterstraat 84, 9630 Zwalm-Roborst ("Roborst"). Owen had to register in Belgium to get a Belgian social security number and work in Belgium. He registered at his address in Werchter as a foreign EU citizen and was issued with the corresponding residence card. He opened a Belgian bank account so his salary could be deposited into it. In September 2001 Owen wrote letters describing himself as working in Belgium "for an indefinite period from 28 September 2001". The Claimant had been living in Owen's house in Back Lane (he was between houses) until then. After that it was necessary to sort out his cats (see letter 10 September 2001 to the Ark Veterinary Practice) and council tax at the reduced rate for empty properties (see letter dated 26 September 2001 to Stratford upon Avon Council). He stated on an Inland Revenue form that he expected to come to England for about six weeks in three years. He then became disillusioned with Bird Goen and looked for a new job. In June 2002 he was offered a job with Renault's patent department at Guyancourt, France and started in September 2002. He gave up his flat in Werchter and after finding a temporary place to live in Guyancourt, moved in with an expat at 85 rue de Massy in 92160 Antony, France. According to Natalie, when Owen started with Renault, he tried to register in France but became frustrated when he was sent from one place to another by French bureaucracy, and quickly gave up, never to try again. Renault did not require him to register in France, so he did not do so. On 12 October 2002 Owen obtained a further Belgian residence card, registering at the Roborst address. Natalie said in evidence that although the Dikkele address seemed more likely to remain constant, he chose Roborst because it was a more reliable address for receiving mail, particularly as a family member at Dikkele had an alarming tendency to throw away mail. In spring 2004 Owen found a small flat near his work at 20 Rue Jules Michelet 78280 Guyancourt, France ("Michelet"). His usual practice was at this stage to drive to Guyancourt on Sunday night, drop Natalie off at her work in Marcq en Baroeul, Belgium, then travel back to Dikkele on Friday night, picking up Natalie on the way. His cats lived in Dikkele, and were looked after by Natalie's father during the week. In July 2005 Natalie left her job and started an 18 month period on a reduced salary with a non-compete clause which restricted her ability to work. She understood at this stage that a property in Dikkele which included her grandfather's old forge was likely to come on the market soon, and envisaged seeking to start a family with Owen and purchasing this family property. However, Natalie did not get pregnant, the forge did not in the event come on the market, and Natalie sought to return to work. In 2006 Owen was passed over for promotion at Renault, which he found frustrating as he did not respect the successful candidate. This led to him looking for other jobs. He applied for jobs with Toyota in Belgium and Porsche in Germany. He was not successful in these applications, and continued at Renault, albeit dissatisfied with his work there. Natalie obtained a job in Paris with Air Liquide in December 2006. She moved in with Owen at Michelet and they would spend the week in Paris and the weekend in Dikkele with the cats, who were known as "the Hooligans". Natalie's evidence was that at this stage the Hooligans were the main reason for Owen returning to Dikkele at weekends. There were a couple of cats at Michelet too, who were not physically strong enough to travel to Belgium. Natalie's evidence was that Saturdays were often spent driving around in Belgium picking up spare parts for his motorbikes and other vehicles which he would purchase online The Hovel The Dikkele property involved using Natalie's father's house. This caused frustrations over time, particularly as Owen wanted a workshop for his scrap metal and they were both strong personalities. In April 2007, Natalie saw an advertisement for a run-down place at hauwstraat 28, 9680 Brakel-Zegelsem, Belgium which had both a workshop and living areas, albeit requiring restoration. Her evidence was that she thought this would combine the need for a workshop for Owen and somewhere she could be together with him when he was working. He was more sceptical, but ultimately the property was purchased by her on the basis that this would be her property and both purchased and refurbished with her money. The new property was referred to by all as "the Hovel". There was quite a lot of evidence about it. The property was purchased by Natalie, in her name with her money. Natalie took ownership of the Hovel in July 2007. Thereafter work was done on planning applications to be made to the Belgian authorities through a Belgian architect. Planning permission was granted on 27 October 2008, so work had not commenced at the time Owen died. There is correspondence with the Belgian architect which reflects an input by Owen into at least some of the decision-making going beyond the workshop. Ultimately, after Owen's death, Natalie went ahead with the plans and the work. To say that this was solely Natalie's project puts the position too high. Owen certainly was interested and involved in the workshop, which was something he alone was interested in. Although he was initially sceptical about the overall project, he seems to have warmed to it over time. There is evidence that he paid the initial deposit for cashflow reasons and received the money back from Natalie, and that he had an involvement in correspondence with the architect at least on technical matters (it was said that Owen had no interest generally in his surroundings, other than on a technical or structural level) and in particular was involved in decisions as to the extent of the works and anticipated doing the electric work and possibly the plumbing and heating work himself. He paid at least one bill from the architects. He may have paid minor sums otherwise but I accept Natalie's evidence that the costs of the living accommodation were generally paid by her. Her evidence was that they agreed she would pay for the work to the living accommodation and he would pay for the work to the outhouses which would serve as his workshop, and they created separate logbooks recording their separate contributions, but in his case the continuing temptations of buying additional scrap vehicles proved too great for much progress to be made. It was because these temptations were regularly succumbed to, according to Natalie, that they continued to retain separate bank accounts. I found the emphasis in cross-examination on whether it was "the Hovel" "my Hovel" or "our Hovel" of little assistance. In one sense, this was purchased as a family house and, so long as matters stayed as they were, it would have been so for weekends. But Natalie's evidence was that this was her property and deliberately so, purchased in order that they should not need to stay in her father's house, to fulfil Owen's need for a workshop, and her need to avoid being separated from him when he used his workshop. It is in my view significant that he was not prepared to share the purchase of the Hovel and it was treated by Owen and Natalie as Natalie's property rather than (as one might expect in circumstances where Owen earned more than Natalie) a joint property. Owen 2006-2008 Owen still owned Back Lane. He spent about four weeks a year in the UK. He did not financially want to be out of the UK property market, but Back Lane was too far away from the Channel ports to be convenient and he discussed with his brother Adrian the possibility of selling Back Lane and investing the money in refinancing his mother's property in Bromley in return for part ownership. This did not in the event happen. In 2007 Owen changed his Belgian place of registration from Roborst to Dikkele. Natalie's aunt had died and Owen's registration at that address caused her widower problems in obtaining benefits. So he changed the registration to the Dikkele address on 28 July 2007. Owen had proposed to Natalie in 2005/6. She accepted his second proposal. She was Catholic, albeit not from the same Catholic background as Owen's family. Owen was a firm atheist. To please Natalie, Owen wanted to marry her in the Catholic church near Bromley where his father's funeral had taken place in 2004, but this led to a major row and Owen's mother said he could marry her anywhere but there, essentially because Natalie was not a Catholic in the tridentine tradition. An alternative was arranged whereby they would be married in a more ecumenical service in Cornwall by Mr Judson's father, who was an Anglican vicar, but by the time of Owen's death it had not yet occurred. Owen did not, according to Natalie, contemplate getting married outside England. Owen did not speak Flemish. He retained a UK passport and driving licence. He retained bank accounts in England, Belgium and France. He appears never to have referred to himself as Belgian. He signed tax returns in Belgium. He joined Belgian motorcycle and gun clubs, and went to motorcycle shows in Belgium and continental Europe, but most of his friends remained English. All his holidays were taken in England. In 2006 he described himself in an email as "British but resident in Belgium commuting to France weekly." In an email dated 13 October 2008 he describes himself as "I am an expat in Belgium." An email to a motorcycle correspondent written to a Dutch email address and headed "Re: gearbox" shortly before his death, on 5 November 2008, repays citation: "I am British and my house is about 8km south of Stratford-upon-Avon, which makes it about 20km north from the annual Rudge rally site. However, I work at Renault just outside Paris near Versaille, so I am there during the week. To complicate things further, my missus is from Vlaanderen, so we are back at Oudenaarde at the weekends. Moving stuff between France, Belgium and the UK is therefore no problem." The will Owen made a will in 1996, appointing the Claimant and his (now) wife as executors, leaving all his estate to Clive. There is a jokey series of emails on 15 August 2008 between Owen and the Claimant talking about death (which make unfortunate reading given what occurred) in which Owen says: "I need to make provision for the cats' well being. I have got a will, but I need to update it. As it stands, I believe it all goes to N." It was suggested that this was evidence that there might be a subsequent will in existence. But it is apparent from the extensive searches for such a document that no such document exists. It is obvious (particularly from the use of the word "believe") that Owen was expressing his understanding that if he died, under English law his property would pass, notwithstanding his earlier will, to his fiancée and common law wife. He could not have been more wrong. It is also obvious that it was Owen's intention that Natalie should succeed to his estate. Anything else would have been perverse. As I have explained above, the issue as to Owen's domicile is the first step in a challenge by the Family Defendants to the will. The estate is not particularly large, given the costs of these proceedings. This dispute is not about money. Contentions of the parties The Claimant's case The Claimant's case is that Owen never lost his domicile of origin. He worked from 2002 in France but never developed any loyalty, affection or bond to France. He never even registered in France. His Guyancourt flat was simply a convenient place to stay in the week. As for Belgium, the Hovel was Natalie's property and deliberately bought as such. Ultimately, Owen never developed any loyalty to Belgium either. If he obtained a job elsewhere, as from time to time he hoped to do, he would move and Natalie would almost certainly move with him. He remained at heart an Englishman abroad and never developed an attachment to Belgium such that he lost his domicile of origin. The Family Defendants' case The Family Defendants point to the Hovel as a permanent home in Belgium. Owen never made plans to return to England although he had been gone for seven years. His cats, his fiancée and his home were in Belgium. He hoped to have children there. He was registered with the Belgian authorities. Before he left England, he made it clear he was leaving for "an indefinite period". His domicile had for some time been Belgium. Discussion Did Owen ever adopt a domicile of choice? France can readily be ruled out. Owen never developed any form of relationship with France. France was a job, a weekday home for when he was working, and base for a couple of cats who could not travel, but that was as far as it went. He never registered in France, or spent time there outside the working week. The connection with Belgium was of course more substantial. But I do not consider that Owen ever acquired Belgium as a domicile of choice. My reasons are as follows: i) Owen retained property throughout in England, albeit much at least of that reason was to ensure that he retained a foothold in the English property market. His attitudes remained British: he never developed any affection for Belgium or Belgian culture. He seems to have retained an almost jingoistic Britishness. He never learned Flemish. He retained a UK passport and driving licence. He never purchased property in Belgium and his assets in Belgium consisted of one Belgian bank account with not much in it. His friends were English and his holidays were spent in England. ii) He made it clear to Natalie that he wanted to send any children they had to boarding school in England. He told the Claimant that he intended to retire to England, although that seems to have been expressly rather vaguely. He made plans to get married in England. iii) The Hovel did provide some element of permanence in Belgium. But Owen was not happy in his job and was, in the short or medium term, looking towards a move. He would, I find, have moved to wherever a job took him, whether the US, or continental Europe, or the UK. If it did not remain convenient to spend weekends in Belgium, he would not have continued to do so. iv) It is also relevant to have in mind the circumstances of the purchase of the Hovel. This was, very deliberately, Natalie's property. Whatever common decisions were made about refurbishment works, it is striking that this was not treated by Natalie and Owen as their joint property in the way a couple committed to the future together (as were Owen and Natalie) might have expected. It suggests, at least, that Owen was not willing to commit to a future in Belgium. v) The Hooligans (the cats) were resident in Belgium. They would have provided a draw towards Belgium, as Owen was devoted to them. But Owen was accustomed to separation from his cats- he left cats when he left Back Lane, he had cats in Michelet and when he had looked for employment abroad in 2006 he must have contemplated leaving the Hooligans in safe hands in Belgium. vi) It was suggested that the Hovel would become a family home in the future. But Natalie's evidence was that it had become clear to her in the course of her 18 months without work in 2005/6 that she did not wish to stay at home, with or without children, even though Owen would have been happy for her to do so and there was not a financial need for her to work. Her evidence was that Owen would have continued to look for jobs abroad and would have expected her to follow him. vii) In 2001 Owen wrote letters stating that he was going to live in Belgium for "an indefinite period." This meant, in my judgment, no more than that he did not know when he was coming back. viii) Whilst care must be taken with declarations and comments in documents or emails, because they often need to be seen in context and often serve a particular purpose on the part of the maker, those to which I have referred in this judgment are consistent with Owen retaining his domicile of origin. The purchase of the Hovel, and the element of permanence which it suggests, provides the high water mark of the case in favour of Belgian domicile. But in my judgment the evidence never came close to satisfying the burden on the Family Defendants to show that Owen acquired Belgium as a domicile of choice. The authorities recognise the adhesive nature of a domicile of origin. Applying Kierkegaard in the manner required in the authorities I have cited, Owen remained throughout an Englishman abroad. Ultimately, I think that Owen would have been horrified to learn that after his death it would be suggested in open court that he had acquired a domicile of choice of Belgium. Residence Domicile involves residence and an intention to remain permanently or indefinitely ( animus manendi). It is probably right to say that Owen was resident in Belgium, and if necessary I so hold, but where Owen worked all week in France and returned to Belgium every weekend, it seems to me the question of residence is probably a more difficult issue than the question of domicile, the latter being in my view clear. The Family Defendants' pleaded case uses the expression "habitual residence" but I think "residence" is the relevant term. Belgian law residence In opening, counsel for the Family Defendants indicated that I would be asked to make a finding on Belgian law as to residence, again using the expression "habitual residence", which was a case which had been pleaded. As neither party had sought leave to lead expert evidence and the Claimant would have been taken by surprise if a case as to Belgian law had been run at this hearing, the matter was left on the basis that it was a matter for the Family Defendants to consider hereafter whether my findings gave rise to any issue estoppel in Belgium if proceedings continued there but that I would not consider questions of Belgian law. Conclusion I find that Owen never lost his domicile of origin and remained domiciled in England. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII